The History of Legal Aid

Beginning in the late 1800s and throughout the early years of the 20th century, the American legal profession expressed its commitment to the concept of free legal assistance for poor people in the form of legal aid societies and bar association legal aid committees. Since 1964, the United States government has supported its commitment to “equal justice under the law” with federal funding for civil legal assistance to low-income people. Today, the federal appropriation of $329 million represents less than half the resources devoted to civil legal services in the U.S. State-based civil legal services systems in all 50 states rely in varying degrees on funding sources that include national, state and local governments, Interest on Lawyer Trust Account (IOLTA) programs, foundations, attorney fees and private attorney resources.

At the beginning of a new century, justice for all is not yet a reality in America. However, a recent round of federal funding cuts and restrictions has prompted creative new approaches, energetic new allies and new funding sources to provide poor people the information and assistance they need to address their legal problems and promote their legal interests. These developments make it possible to envision a 21st century in which we can fulfill the promise of equal justice in America.

Early Legal Aid Programs

Civil legal assistance for poor people in the United States began in 1876, when the German Society of New York founded an organization to protect recent German immigrants from exploitation. The agency’s protection was subsequently extended to others, and in 1890 it became the Legal Aid Society of New York. In 1888, the

Ethical Culture Society of Chicago established the Bureau of Justice, the first agency to offer legal assistance to individuals regardless of nationality, race, or sex. Other municipalities followed suit, and in the first decades of the twentieth century most major cities had fledgling legal aid offices.

The concept of free legal assistance for the poor was promoted by the publication in 1919 of Reginald Heber Smith’s Justice and the Poor. Smith challenged the legal profession to consider it an obligation to see that access to justice was available to all, without regard to ability to pay. “Without equal access to the law,” he wrote, “the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented.”

Smith’s book had a major impact on the legal profession. In the early 1920s, the American Bar Association created the Special Committee on Legal Aid Work, and recommended that every bar association create such a committee. By the middle of the twentieth century, virtually every major metropolitan area had some kind of legal aid program. Some were part of bar associations and relied primarily on the donated time of lawyers. Others were run by law schools, social agencies or municipalities and had paid staff. Some were private, nonprofit corporations.

This patchwork system of legal aid fell far short of meeting the legal needs of poor people. It has been estimated that it reached less than one percent of those in need. Many areas of the country had no program at all. Where legal aid existed, its resources were stretched so thin that services were very limited and usually perfunctory. Legal assistance was viewed as a form of charity, and clients deemed not to be among the “deserving poor” were turned away. Services were provided on a purely individual basis, with no effort to address the fundamental problems of poor people.

In the early 1960s a new model for legal services emerged. Foundations, particularly the Ford Foundation, began to fund legal services programs located in multi-service social agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort. Mobilization for Youth in New York, Action for Boston Community Development, the Legal Assistance Association in New Haven, and the United Planning Organization in Washington were among the earliest legal services programs of this type.

In 1964, the U.S. Department of Health, Education and Welfare held a conference on the Extension of Legal Services to the Poor. Attorney General Nicholas deB. Katzenbach set the tone for the conference. While acknowledging the long and devoted service of legal aid societies, he called for “new techniques, new services, and new forms of intra-professional cooperation . . . to analyze the rights of welfare recipients, of installment purchasers, of people affected by slum housing, crime and despair. “There are signs, too,” he noted, “that a new breed of lawyers is emerging, dedicated to using the law as an instrument of orderly and constructive social change.”

Looking Back and Looking Ahead

Throughout the history of the legal services movement, legal services programs have provided assistance to tens of millions of low-income people. Legal services advocates have helped children gain access to health care, education and training, and better living conditions. They have helped poor mothers obtain child support from absent fathers. They have helped welfare recipients obtain childcare, job training, and employment.

They have helped farm workers and other low-wage workers improve dangerous and unhealthy working conditions, and obtain the wages to which they are legally entitled. They have helped elderly people maintain their independence. They have helped residents revitalize neighborhoods decimated by crime, joblessness, and poverty, through economic development and micro-enterprise initiatives.

Legal services has fundamentally changed the ways in which institutions relate to the poor. It has provided an essential link between government and private programs and their intended beneficiaries. It has functioned to ensure that programs designed to benefit the poor actually do so. Legal services has made the justice system more responsive to the needs of the poor. It has brought tens of thousands of private attorneys into the civil legal assistance system as providers of pro bono services. It has produced successive generations of skilled poverty lawyers, some of whom have remained in legal services, while others have gone on to serve as law professors, judges, state supreme court justices, and government executives and elected officials at the state, local and national levels.

Many challenges lie ahead. The circumstances of many low-income Americans have changed dramatically. The federal welfare reform act of 1996, which made the most sweeping changes in social welfare programs since 1935, eliminated critical federal entitlements and legal rights to cash assistance, health care and child care for families with children. States can now decide wider questions of social policy that for the past 60 years have been addressed primarily by federal policies and programs. Welfare rolls have decreased dramatically, yet there are few mechanisms in place to protect those no longer receiving public benefits. Work and participation requirements, time limits, and new opportunities for access to childcare and health care are reshaping the individual legal needs of low- income people. The needs of low-income populations as a whole are also affected as states continue to make key decisions about who receives assistance, in what form and under what conditions.

Legal services providers also confront significant challenges. The resources available for legal assistance remain woefully inadequate to meet the need. As some states develop sources of non-LSC funding, including direct state legislative appropriations, disparity in the level of resources among the states is increasing. The most important source of non-LSC funding, state IOLTA programs, has been thrown into jeopardy by the U.S. Supreme Court?s 1998 decision in Phillips vs. Washington Legal Foundation. As the civil legal assistance system becomes more diverse, initiatives to increase coordination and avoid fragmentation are increasingly necessary. New technology offers potential to change the ways in which legal services are provided, as well as opportunities to improve the circumstances of low-income people.

For most of the last quarter of the 20th century, many in the legal services community subscribed to a vision of full and unrestricted federal funding of the Legal Services Corporation and its grantee providers as the way to fulfill the promise of equal justice. The threat to federal funding in 1995-96, and the resulting 30 percent cut and new restrictions, prompted the development of a new, more complex, more powerful vision for how this goal could be achieved. A continued national commitment to federal funding must be combined with the creation in every state of comprehensive, integrated, statewide systems of civil legal assistance.

These newly emerging, state-based systems will enlist the efforts of all possible participants and resources, not just as supporting players, but as full partners. A community of advocates will share the responsibility to ensure equal justice, a community that includes not just legal services programs but the private bar, social service and community organizations, law schools, courts, advocacy groups and poor people as advocates for themselves. These equal justice leaders in each state will share responsibility for effective legal assistance not just in their local programs or communities, but also throughout their entire state.

The energy and resolve which have characterized the advocates for equal justice throughout this century will ensure continued successes in this latest, unfolding chapter of legal services history in America.